A white supremacist organization held a public rally near a courthouse in Princess Anne, Maryland. During the rally, members of the organization made racist and derogatory speeches amplified over a public address system. Officials of Princess Anne and Somerset County obtained a restraining order to prevent the organization from reconvening the next day. The order was ex parte, so no notice was given to the organization. The order restrained the organization from holding rallies in the county for 10 days. At trial, the Circuit Court issued an injection for another 10 months. On appeal the Maryland Court of Appeals affirmed the 10 day order, but reversed the 10 month injunction because the period of time was unreasonable and arbitrary.

Question

Was the case moot because the restraining order had already expired? Was the restraining order an improper prior restraint in violation of the First Amendment?

No, Yes. In a unanimous decision, Justice Abe Fortas wrote the majority opinion. The Supreme Court held that the case was not moot because the 10-day order still plays a role in the white supremacist organization’s continued efforts in the county. The order was set aside because there was no notice given to the organization and they were not given the opportunity to participate in the adversary proceeding. The Court did note that there may be a case where ex parte orders are allowed when one party can show that the other is unavailable or impossible to serve. The Court did not address the 10 month injunction because it had been reversed by the appeals court.

Ms Eleanor Holmes Norton: Mr. Chief Justice and may it please the Court.

Petitioners are members of the National Stater Rights Party, a political party committed to white supremacy to which they wish to win adherence to the Democratic process.

Specifically the record shows through running candidate in the Democratic and Republican parties as well as independently.

Their major way of reaching the public is through political street rallies.

On August 6, 1966 in Princess Anne, a sparsely populated town of 1351 persons, petitioners held a rally.

The facts break down roughly two ways.

The circumstances surrounding the issuing of the temporary injunction, and the circumstances and facts of the rally as revealed at the hearing of August 17th which led to the final injunction in this case.

The temporary injunction was gotten because at the end of the rally of August 6, another rally for the next evening was announced.

Though no violence nor even any need for police intervention to control the crowd in any way occurred at the August 6th rally.

Town and county officials got an ex parte temporary injunction for 10 days.

Rule B --

Justice Potter Stewart: Are you going to tell us what did occur at the August 6 rally?

Ms Eleanor Holmes Norton: Yes I am sir.

Justice Potter Stewart: You are?

Ms Eleanor Holmes Norton: Yes.

Justice Potter Stewart: All right.

Ms Eleanor Holmes Norton: Rule BB72 forbids the granting of such an injunction without a showing of immediate, substantial, and irreparable injury to the applicant before an adversary hearing can be held, and expressly grants the right to the judge to communicate informally with the person against to whom the injunction is sought or with his attorneys.

No such measures were taken in this case.

Such injunctions are indeed extremely rare in the State of Maryland.

The temporary order and writ of injunction restrained any “rallies, gatherings, or meetings anywhere in the county that would excite to riot or other illegal acts.”

Though the writ of injunction itself addressed to the parties by name may clear that the court construed any gatherings by this party as enjoined.

Not simply those that may excite to riot etcetera, for it enjoined to use of any sound amplification equipment in the course of public meetings, such equipment being necessary to hold such meetings.

A permanent injunction -- the temporary order said might issue upon hearing.

Petitioners were not able to find representation in time for appear before the return date of August 17.

But at that time, they did -- they had secured counsel and they filed an answer asking that the temporary injunction be rescinded.

Now to the facts and circumstances surrounding the August 6th rally, they were given their first hearing at the August 17th hearing at the court.

It is important to note that there was available to the court at the time of the issuing of this ex parte injunction the tape from the August 6th rally, but the court issued the injunction against further rallies without listening to that tape at that time.

The tape recording reveals a description of the parties aims.

Particularly repeal of 1965 Civil Rights Act and other Civil Rights Act then under consideration.

They're speaking caustic terms, was a call to actions but in every case a call explicitly to political action.

Examples of these are rampant in the record.

They called for example for those who heard them to “organizing intelligently, fight intelligently.”

They said for example, that the National States Rights Party advocates every legal, legitimate, and political inaudible word in the book to stop race mixing.

As to the specific political actions urged to the whites they said, for example, that they were to phone and write in button on James Bond, to the end that the schools not continued to be integrated in the county.

Their only remark that appear to be addressed specifically to the 25% of the crowd that was Negro, urged them to start taking reservations to Africa.

Since this remark appears to be among the more controversial in the record, it should be seen in its entirety and context.

The petitioner said in the course of that remark, “We don't need you, you're off, you're dead.

Get ready to leave this country.

Get ready to leave this country.

You can leave in a lot of way.

You can leave on a boat, you can leave running.

You can bicycle or you can leave in a box.

This is a white man's country.

Princess Anne is a white man's town.

This is a white man's country.”

A witness testified that following this exhortation, both groups appeared interested.

Earlier, the party officials --

Justice Potter Stewart: Why don't you think the -- don't we have to accept that the thought of leaving in a box was a reference at least to violence and murder.

Ms Eleanor Holmes Norton: Yes it was indeed.

It was a possible reference to their leaving in -- as a result of some sort of violent acts.

But isn't -- it is important to note that in advance of that exhortation of party officials had noted and this is earlier.

This is before this comment that the party's official position about Negroes was an adoption of the position of Abraham Lincoln namely that this country should send Negroes back to Africa.

Moreover, the remark in question was not followed by any exhortations to the crowd to either start now or at some future date to seeing toward as Negroes leave in a box or even to seeing toward the Negroes leave in any other way.

Rather, immediately following this remark is a classic call to organize politically and nonviolently to wit.

Let's organize, let's hear a great human cry come up from the people and I guarantee you white folks out there to win every single political objective.

And a few sentences later, another of several calls was specifically nonviolent, political action to wit.

Bring your friends back out here tomorrow.

We want a shout to come out of this town, a nonviolent shout that every local politician is going to hear.

We want to McKelvin to hear it, Governor Talos to hear it, Congressman Morten and all the LBJ's.

Justice Abe Fortas: Mrs. Norton, I'm not clear from or and I have read as for whether there was in the community, state of tension at the time that this rally took place.

Where have -- where had there have been disorders?

Was there trouble in the community?

Ms Eleanor Holmes Norton: According to the record Mr. Justice, the last as orders had been in February 1964.

It was then August 1966.

There was specific testimony that relations between the raises in the town in advance of February '64 had been congenial and since that it had been congenial.

It was on the political prociendo of everyone coming back tomorrow and raising a non-violent shout to political leaders that the rally ended as the audience was invited to come up and take out $8.00 memberships into the National States Rights Party.

The use of the word nigger to denote Negro occurred throughout the rally but it provoked neither the Negroes present nor the whites.

In the first place, no one was specifically called a nigger.

One of the petitioners gave as a reason for the use of the word every time you call a nigger appellate person you are apologizing to them because they are black.

The -- there was clearly a political reason for the uses of the word.

The county's evidence --

Justice Potter Stewart: Well, now there was also evidence that wasn't there.

That there had been two rapes in the locality of white women by allegedly by Negro assailants.

Ms Eleanor Holmes Norton: Mr. Justice you mean two rapes recently?

When this rally was --

Justice Potter Stewart: I thought recently that the speaker was asked not to refer to, and did not refer, but instead of that he talked about a 1933 incident which should end about the lynching, the last lynching in Maryland as I understand it over here in the eastern shore.

Ms Eleanor Holmes Norton: That is correct and at that time he said to the crowd, “And I want you to know I'm not advocating that kind of action.

I'm accounting a bit of history”

Justice Potter Stewart: Yes, and then he also told them about Chicago incident where a white people rose up, kicked hell out of the niggers, burnt 32 cars.

Ms Eleanor Holmes Norton: That's right.

He recounted -- he recounted incidents at which violence occurred but throughout the record, we have these petitioners telling the crowd, “Look, don't involve yourself in violence.

That happened to us before.

That's what they want to have happen here and we distort you against it.”

The county put on evidence that rally, at the rally were 200 people.

That there was an ample police force that the Negroes were clearly disturbed and angry but that they did not so much as even mingle with the whites.

There was evidence over the objection of counsel of 1964 riots that had followed sit-ins, not pure speech.

There was evidence that there was racial peace before and since.

There was also evidence of cooperation between petitioners and the authorities.

One of petitioners for example, inquired about the use of a public address system and about general sponsorship of a rally.

Captain Randall, one of the officers present, did request that that there will be no mention of the cases and as the justices point it out, there was no mention although there was mentioned of the 1933 case.

Justice Potter Stewart: Was I right in understanding that that case had led to the -- to a lynching?

Ms Eleanor Holmes Norton: That case had indeed led to a lynching and these petitioners noted that at that time, there was shame cast on Princess Anne but that they didn't feel that -- but Princess Anne apparently at that time didn't feel that was such a shameful conduct.

Justice Potter Stewart: Just the opposite, they put stickers on that car saying they were proud to be of --

Ms Eleanor Holmes Norton: Currently they were proud --

Justice Potter Stewart: You're back to the lynching.

Ms Eleanor Holmes Norton: That's right.

These petitioners did relate to this audience by encouraging them that they had participated in activity that might be also considered to be raises although these petitioners did not in fact exert them to participate in such activity at the present time.

The court refused to hang down on immediate opinion or even a ruling because they want to see a transcript first.

Since then, a sound equipment statute arguably bad under Seija versus New York has been passed by the county.

The Court of Appeals of Maryland disapproved neither injunction.

However, it held at the 10-month injunction was too long.

Of the 10-day ex parte temporary injunction, the Court of Appeals said, “The court was correct in issuing its order dated August 7, 1966.”

If the Justices please, I'd like to deal with the mootness questions first.

This Court has currently given some time to trial counsel, co-counsel here Mr. Zinman in order that he might relate some of the factual circumstances that might clear up this issue somewhat more.

He'll take five minutes to do that when I had finished.

We believe that this case is not moot because we believe we come within two exceptions.

One, a substantive exception and the other are procedural exception.

And this Court has always recognized exceptions to the mootness requirements.

We cite a law review article by Diamond and generally in our brief.

And in that -- in the course of that article, there is a summary of one of the exceptions to mootness which we feel we fall within.

It bans perhaps quoting here this short, “Although the controlling fact situation may be so changed that the specific relief sort is no longer possible.”

If the situation is self perpetuating, the parties are entitled to an adjudication which will apply to the renewed phase of the controversy and existence.

We believe that this controversy is clearly self perpetuating.

These petitioners have been informed that they will not be able to speak in Princess Anne County Maryland unless they sense of their remarks.

We have cited in our brief the South Pacific case where -- Southern Pacific case excuse me, where this Court said that short term order is capable of repetition will not defeat a claim for mootness.

We've cited two other cases in our brief which we think point out the difference between moot claims and none moot claims.

One is oil workers where the Court found mootness to exist.

The other is Motor Coach where the Court found no mootness to exist.

In both cases, the Governor's seizure of a public utility was at issue and the Governor had returned the property.

The difference was that the underlying factual dispute was present in one case in Motor Coach and not present in the other.

That underlying factual dispute was a strike which ended in the one case and which continued in the other.

We think that the Sideburn case decided last term by this Court also points out a kind of exception this Court will -- it takes normal mootness claims.

There, it was pointed out that failures in state procedure will not be allowed as a course for mootness.

Now, we think that there are specific failures of state procedure here which this Court in Freidman versus Maryland has already analyzed and condemned.

There this Court, looking at the censorship statute noted that there was no prompt way to get judicial review in the State of Maryland.

It compared Maryland procedure with New York procedure.

Under New York procedure, under Maryland procedure, it found that the statute talked about prompt administrative determination but it said that there was no assurance of prompt judicial review and this Court didn't really know how prompt administrative determination had to be.

In New York on the other hand, there is clear, definite language by the time limits as this Court said.

For example, a judge had to in New York hand down his opinion within two days after a matter was heard.

That kind of time limit saved the censorship statute in New York and didn't save censorship in Maryland and we submit that in this case, we have that kind situation.

Moreover, Walker versus Birmingham is procedurally relevant here, because the court there criticized petitioners for making no efforts to challenge the injunction there.

And the court gave every indication that if petitioners had made efforts and if petitioners had met with delay, this Court would have decided the case.

Yet I believe that that case could not have gotten to this Court either before it became moot.

For the demonstration, it was hoped to be held on an Easter Sunday and the injunction was issued some two or three days before hand and even under available procedure.

They could not have gotten here so I think there's an indication in the opinion that this Court would have decided that ex parte temporary injunction case because it related to free speech.

The court -- this --

Justice Potter Stewart: I don't think the indication was that the case could have gotten here in time in the Walker against Birmingham but rather that if the petitioners have gone to the trial court in Alabama and had been met with a rebuff or a delay, and then had proceeded to hold their parade, the case would have been presented here ultimately in quite a different posture.

Ms Eleanor Holmes Norton: That's possible Your Honor but another procedure would have been just as much open to them would have been to somehow seek appeal here and they would have been uncertain as to whether or not to violate the injunction then or not.

It certainly is worth noting that this Court in Walker and Birmingham expressed considerable doubt as to the injunction and statute involved even though it didn't have to decide that question because it was a First Amendment case and it had an ex parte injunction in it.

We believe that these procedural and substantive reasons which are applicable to cases generally apply here, but we believe this case has another important part to and that is that now it's an ex parte injunction here in a First Amendment case.

And we believe that the supremacy clause means that this Court ought not let that ex parte injunction stand as law and rule of the First Amendment.

Indeed, even when speech is not involved, equity will normally not enjoin the commission of a criminal act.

But when speeches involved, it would seem all the more inappropriate.

The court below it should be noted expressly approved the ex parte injunction here though it had run by the time it got to the Court of Appeals and we think this Court can do the same.

We like to spend the few minutes on the injunction themselves.

Justice John M. Harlan: (Voice Overlap) as we heard, your clients make any effort to review the ex parte injunction?

Ms Eleanor Holmes Norton: Yes.

Yes, they did although not before the answer day.

We've submitted a reply brief in which we have shown at the petitioners could not secure counsel in time to force a hearing before they did.

Had they been able to do so?

They would have done so and as soon as they secured counsel, they did in fact file an answer.

We've asked this Court to do two things with respect to these injunctions.

Number one, to disapprove the use of the injunctive process to control speech and number two, we've argued that these injunctions in any case were improper because the evidence is finally submitted, did not show that an uncontrollable situation was bound to result from the next rally.

The disapproval of the injunctive process we think is necessary and would only repeat what this Court has done in the permit cases.

We don't need to tell this Court that a prior restraint is the essence of what the First Amendment bars so much so that this Court has rarely had before it and a speech that has been enjoined.

Justice Potter Stewart: There were no -- there was no ordinances or statutes involved here, were there?

Involving--

Ms Eleanor Holmes Norton: That's right.

Justice Potter Stewart: -- permits for a meeting or anything like that?

Ms Eleanor Holmes Norton: That's right Your Honor.

There was nothing in existence --

Justice Potter Stewart: That's right, there were none.

Ms Eleanor Holmes Norton: That's right at that time.

This Court in permit cases has always looked to see whether or not the permit went beyond mere ministerial permission -- ordering the mere ministerial permission be given to give speeches.

What we think that means is that this Court has said in speech cases, there shall be no prior restraint.

All we're asking this Court to do is do the same thing in the context of an ex parte injunction.

We think there's another reason why this Court should disapprove the use of the ex parte injunction because we believe this Court has said and whenever it is used in any free speech test, that the state must use a constitutional way to reach its legitimate end.

Now we certainly regard the end here as legitimate.

Here the end is control of disorder, but disorder can be controlled without the menacing, without the broad, without the unusual ex parte temporary injunction.

This is -- this has been said in this Court time and memorial and can't --

Justice Abe Fortas: Ah, Mrs. Norton, I have a little trouble by the procedural aspects of this case.

Actually, what happened here was that an ex parte injunction was issued and then later on, two ex parte injunction was issued to restrain the petitioners from holding a meeting in 10 days.

Then later on, there was an interlocutory some sort of a interlocutory order entered to restrain petitioners for 10 months?

Ms Eleanor Holmes Norton: That's right Your Honor.

Justice Abe Fortas: Now did that -- now and but you're arguing this case as if what we have before is the ex parte order, the first order.

Was the second order ex parte also?

Ms Eleanor Holmes Norton: No, the second order was not ex parte.

The second order --

Justice Abe Fortas: Now why is it referred to in the papers that we have before us here as an interlocutory order?

It went to the Maryland then an appeal was taken at the Maryland Court of Appeals was it not?

Ms Eleanor Holmes Norton: Yes, that's local terminology.

Justice Abe Fortas: All right but and you make no point of that in your adversary --

Ms Eleanor Holmes Norton: That's right.

Justice Abe Fortas: -- makes no point of that.

So, the -- then there was an appeal taken to the Maryland Court of Appeals, is that right?

Ms Eleanor Holmes Norton: That's right sir.

Justice Abe Fortas: And the Maryland -- didn't the Maryland Court of Appeals indicate in some way that the ex parte order was invalid?

Ms Eleanor Holmes Norton: No it did not.

It expressly indicated that the ex parte order had been valid.

Justice Abe Fortas: And how about the next order in the 10-month order.

Ms Eleanor Holmes Norton: The 10-month order it said was invalid only because it was for too long a period of time.

Justice Abe Fortas: Well now, so that what we have before in your submission is only the ex parte order?

Ms Eleanor Holmes Norton: Technically, that's true Your Honor.

Justice Abe Fortas: And that ex parte order enjoined a particular -- enjoined defendant's from holding a particular proposed meeting.

Is that right?

Ms Eleanor Holmes Norton: Not only a particular proposed meeting but any meeting that might have been held for those 10 days Your Honor.

Justice Abe Fortas: For 10 days only.

Ms Eleanor Holmes Norton: Yes.

Justice Abe Fortas: And we don't have before as a subsequent order which was a 10-month order.

Ms Eleanor Holmes Norton: Technically we do not, because technically it was struck down although the method, that the injunction method was expressly approved.

Now, also as I understand it somewhere in these papers, the petitioners subsequently applied for a permit to hold a meeting, a meeting in Princess Anne County, I don't recall the dates.

First time, they were refused.

They subsequently applied and permit was granted but on conditions?

Ms Eleanor Holmes Norton: That's right Your Honor.

Justice Abe Fortas: Now what bearing if, what is your view as to whether those events have a bearing upon our jurisdictional and procedural problems?

Ms Eleanor Holmes Norton: Oh, well, we believe that that subsequent application demonstrates that the effect of the ex parte injunction continues although the 10 days --

Justice Abe Fortas: In other words, two subsequent applications.

One denied, the other granted.

Ms Eleanor Holmes Norton: That's right.

The one that was granted was granted only if petitioners agreed not to give a speech of the kind they gave on August 6.

Justice Abe Fortas: Now is that before this?

Is that in the record of the precise -- are the terms of that permit in the record has it been litigated below?

Ms Eleanor Holmes Norton: It has not been litigated below.

Justice Abe Fortas: Is it before this in the record?

Ms Eleanor Holmes Norton: It's not before as in the record as a cause of action.

It's only they have to demonstrate.

Justice Abe Fortas: But how is it, what's the physical form?

Ms Eleanor Holmes Norton: It is -- we brought to this Court's attention --

Justice Abe Fortas: How?

Ms Eleanor Holmes Norton: Only to show in the form of letters in the appendix of our petition for certiorari.

Justice Abe Fortas: Is there a formal permit that's reprinted in the appendix?

Ms Eleanor Holmes Norton: In the reply brief, there is a statute since passed pointed which requires a permit in order to use sound equipment.

Justice Abe Fortas: That's all we have before this but you don't have the specific text of the permit that you say was granted on objection on conditions that you assert to be objectionable.

Ms Eleanor Holmes Norton: We have the letter in which the permit is granted.

Justice Abe Fortas: I see.

Ms Eleanor Holmes Norton: Only if X-Y-Z is done.

Justice Abe Fortas: That is the form in which the permit was granted, was it?

Ms Eleanor Holmes Norton: That's right.

That was indeed the form, yes sir.

Unknown Speaker: Mrs. Norton --

Chief Justice Earl Warren: Now I no --

I noticed Mrs. Norton that you reserve some time for Mr. Zinman?

Ms Eleanor Holmes Norton: Yes.

Chief Justice Earl Warren: You're going to have to stay within your half hour so if you're going to -- if you have less than five minutes now.

If you want to take it all, Mr. Zinman don't have the time --

Ms Eleanor Holmes Norton: All right, I will give him five minutes and thank you Your Honor for calling that to my attention.

Chief Justice Earl Warren: Mr. Zinman.

Argument of William H. Zinman

Mr. William H. Zinman: Mr. Chief Justice and may it please the Court.

I'll address my remarks specifically to some of the procedure to which Justice Fortas referred.

Were within the context actually of the Freidman case which we were urge a speedy determination from the lowest court to the Court of Appeals of Maryland.

The ex parte injunction was issued of course on the affidavit of Commissioner D'Shield who the record discloses on -- did nationally observed the rally for more than five minutes time.

Nor as the record indicated that the court actually hear the tape and the order of course continued for 10 days.

Now within that period of time -- oh, and this order, the ex parte order of the record indicates who was not served upon Stoner, Brailsford, and Norton nor the National States Rights Party.

It was however served on three of the petitioners so that actually there are three people who've never got, even got served as a process.

Now ultimately when I got into the case on the 15th of August, I did file a general answer but of course the hearing was scheduled for the 17th which actually gave us only two days.

Now under the Maryland rules of procedure, you do have two days within which to request a hearing for an ex parte order.

However, in this particular case, we filed affidavits to the effect that the petitioners did attempt to contact two lawyers and failing that and also there's a letter in the record which I sent as soon I got into the case to the president of the Bar Association of Somerset County.

Mr. Jones requesting that local counsel be assigned to assist us, because number one, the distance from Baltimore, Maryland from my office to Somerset County is 150 miles and it takes a day to get up and back.

And secondly I wasn't altogether familiar with local practice.

Of course I got back a letter indicating that this was an unpopular cause and half of the Bar Association consisting of seven around the other side of the case and that in any event, nobody wanted the case.

Consequently, there wasn't any real remedy that these petitioners have.

And we had a parole intents and purposes addressed ourselves to the permanent injunction and the hearing which of course came later.

Now, in connection with our argument under Freidman that we would like a prompt and expedition to termination, I would suggest that even though technically the interlocutory or permit in injunction is not before the Court.

From a practical standpoint, this injunction continued in effect from the date of its inception, the date of the ex parte order, which was on the 7th, until June the 7th, 1967 when the Court of Appeals finally rendered its decision.

During the interim period, I would like this Court gone to stand that I made certainly every effort to number one, expedite the case according to the Maryland rules of procedure by initially trying to shorten the time for transmission of the record by filing a motion to shorten the time within which argument was to be held and even by sending a letter to the Court of Appeals of Maryland, which is part of the record requesting them to render an expeditious decision.

So from a practical standpoint, the defendants were enjoined for almost nine months, and I think that we would like the ruling to the effect that a determination of this kind involving speech and involving assembly should be handled in the same way that censorship cases are handled.

That is that they should be able to get from the court of the lowest instance to the highest court in the state within the shortest period of time.

Justice Potter Stewart: I gather the 10-month period was chosen by the court because that would cover the academic year of Maryland State College, is that right?

Mr. William H. Zinman: Yes.

Justice Potter Stewart: And I --

Mr. William H. Zinman: And I think what --

Justice Potter Stewart: Which is the predominantly Negro institution?

Mr. William H. Zinman: Yes sir.

Unknown Speaker: Which school wasn't open at that time and --

Justice Potter Stewart: Time.

But was going to open in September and the academic year will last until the following June.

Mr. William H. Zinman: And I think that --

Justice Potter Stewart: Is that right?

Mr. William H. Zinman: Your Honor, I would interpret that by inference to mean that if the injunction had been for nine months, it would be -- it would have been perfectly proper.

Of course that's my interpretation because -- but -- because --

Justice Potter Stewart: Well your language?

No, I'm sure I misunderstood you.

You mean that the court would have held that to be perfectly proper?

Mr. William H. Zinman: Yes sir.

Justice Potter Stewart: You're not representing it would have been perfectly proper would it?

Mr. William H. Zinman: Oh!

Not at all.

I don't think any injunction at all was prompt to the circumstances.

Thank you Your Honor.

Chief Justice Earl Warren: Mr. Rottman.

Argument of S. Leonard Rottman

Mr. S. Leonard Rottman: Mr. Chief Justice, may it please the Court.

I would like to first point out that there are a great deal of matters which are in the appendix in this case and in the supplemental brief which are not part of the record in this case.

There were matters involving the issuance of the subsequent petition.

The attempts to obtain trial counsel those such items.

They are not properly before this Court we would submit.

Chief Justice Earl Warren: Mr. Rottman, may I just suggest to you before you get into your argument that we have done in this case what we don't usually do.

We have exceeded to the request of both sides to allow two lawyers to talk.

Mr. S. Leonard Rottman: Yes sir.

Chief Justice Earl Warren: And the reason we don't do that normally is because we run over and don't keep our cases within the calendar.

And I just suggest to you that if you want time for Mr. Jones that you do what I suggested on the other side, keep it within bounds.

Mr. S. Leonard Rottman: Thank you.

I would like to, with that in mind, I would to comment very briefly on the issue of mootness.

And it would seem to us and we submit that any decision at this Court may make in this particular case would be moot and would operate purely in a vacuum.

And therefore the case is moot and should not be considered by the Court on the merits.

Justice Potter Stewart: Now, I would, speaking only for myself, we would suppose that you might well argue that under all conventional, and traditional and normal test, this case is moot.

This was a 10-day injunction more than two years ago.

Mr. S. Leonard Rottman: Yes sir.

Justice Potter Stewart: That -- I mean the 10-days expired more than two years ago and nobody is now heard so far as this record shows.

Nobody was ever sent to prison or even find or anything like that.

But what does this to allow a state to do?

Suppose tonight, a court enjoins Hubert Humphrey for holding a meeting in a community where he wants to hold a meeting tonight for 10 days.

And suppose he couldn't get that decided until after November 5th?

Mr. S. Leonard Rottman: I think this year Your Honor, I think that under the Maryland rules, there is an absolute right to a hearing with two days notice.

These petitioners did not avail themselves of that.

They say they had difficulty getting counsel and yet one of their petitioners, Mr. Stone, is an attorney and had only the preceding week appeared in Baltimore on a similar case, in which the National States Rights Party was enjoined.

He appeared and represented them in that case.

I would say that there is an absolute right to a two-day hearing on the injunctions.

And under the decisions of this Court, it seems to me that the test is the quickness with which you can get a judicial review.

The first instance of a court reviewing, the right of the restraint on speech and Maryland has specifically provided the two-day test, two-day hearing.

They can have it on that.

Justice Potter Stewart: Two-day notice of a hearing not a two-day hearing as I read it.

Mr. S. Leonard Rottman: No sir, they can have a hearing.

They can have a hearing or not less than two days notice.

So if they're request a hearing, they must have it within at least two days.

I believe that's the interpretation that's consistently been given in Maryland and that's the way the rule reads.

Justice Potter Stewart: Do you have the Maryland cases cited in your brief with authorities?

Justice Byron R. White: And at least the -- your highest court said that it was a proper injunction?

Mr. S. Leonard Rottman: Yes sir, they said that the existence of the clear and present danger of a riot in the streets of Princess Anne justifies --

Justice Byron R. White: So this is (Voice Overlap) --

This is the rule -- is this a --

Justice Byron R. White: -- this is an interpretation by the Maryland courts, by the highest court of Maryland as to what kind of conduct that a meeting would justify an injunction, as a threat to the public order.

Mr. S. Leonard Rottman: I believe you could say that, yes sir.

Justice Byron R. White: And now that is -- so there is an interpretation of the First Amendment or of the Maryland law has been permissible under the First Amendment which have now obtains in Maryland and which people who want to hold meetings must observe, unless they want to be subject to an injunction.

Mr. S. Leonard Rottman: I believe that so Your Honor but I don't think that the Maryland Court of Appeals broke any new ground in doing it.

Justice Byron R. White: And that rule is one that obtains in Maryland now and that this group, which was enjoined is subject to like all the other groups.

Mr. S. Leonard Rottman: That's right Your Honor.

Justice Byron R. White: Now why would you suggest it that that this case then is moot vis-à-vis this particular group who is, you don't suggest as out of business, who doesn't want to have anymore meetings.

But it must have, it must now in Maryland observe this rule.

Mr. S. Leonard Rottman: Well, this was a --

Chief Justice Earl Warren: Would you answer that after the lunch and recess please?

Justice White, in answer to your inquiry, I would say that the answer is that it is moot because the injunction was issued in the context of a specific factual situation, which may never exist again.

Justice Byron R. White: I know, but the ruling that, the ruling that the -- under the Maryland law pleadings that they be stopped by the injunction consistently with the First Amendment is an ongoing -- that takes the rule of Bowen out.

It's the way that the First Amendment and the Maryland law has been and will be interpreted.

Isn't that any different I don't suppose, if it's a -- and if there were a statute in Maryland that says, “Under certain circumstances meetings may be enjoined, and the people who want to hold meetings, bring declaratory judgement action that challenging that statute.”

And the statute is upheld.

Mr. S. Leonard Rottman: Well, I think that that --

Justice Potter Stewart: No one would suggest -- no one would suggest that the case is moot just because there weren't any meetings involved at the present time.

Mr. S. Leonard Rottman: Well, I would suggest that that law as you pointed out sir, is the law ever since Milk Wagon Drivers Union versus Meadowmoor in which this Court recognized.

Justice Byron R. White: And you're -- now you're just arguing that for the correctness of the rule.

Mr. S. Leonard Rottman: Well, it seems to me that if the issue is to come before this Court on this injunction and in this context that the way to get it before the court is to allow the petitioners to violate the injunction, and subject themselves to the contempt penalties and bring it up in that factual situation.

Because if this Court has to pronounce a rule as to whether it will consider all cases not moot and not follow its general principles of only considering live cases as against to --

Justice Hugo L. Black: But if they -- but if they violate the injunction, haven't this Court said that they can be imprisoned for it.

That they should have gone into the courts to vindicate their rights rather than to violate it.

Mr. S. Leonard Rottman: I don't think that that is the pronouncement in Walker Your Honor.

I think this Court went a good deal out of its way in Walker to point out that the petitioners in that case had taken no steps.

They had taken no steps to contest the issuance of the injunction and the court made it very clear I think, they were clearly put on notice that they could not bypass orderly judicial review of the injunction before disobeying it.

And I think that case, what it does is recognize that you must first, in the initial instance object to the issuance of the injunction.

If it is then issued and if you may then object to it, and if it may run out before you have time to follow through all the way to this Court if you will.

Then you have the right to protest the issuance of the injunction and if the injunction was wrongly issued, their conviction under it would be reversed.

Justice Hugo L. Black: Well suppose on this temporary restraining order if they had gone to the court within two days afterwards, and the lower court had decided against them.

Could they then violate it and come to this Court?

Mr. S. Leonard Rottman: I don't mean say if they could violate with impunity but I think the way to get it before this Court in a live issue and not a moot issue, would be de-violated.

If the balancing of the equities must be between the protection of the state in holding safe its streets by allowing them to issue injunctions or if its to force petitioners and those in their position to test injunctions in a live issue by contesting it and subjecting themselves to criminal penalties.

I would say that the better rule would be to force them to take the burden of criminal punishment than rather to force the state to take the burden of allowing their streets to be the subject of rioting over any issue that speakers may wish to make.

Justice Byron R. White: Then I take it to your position on mootness, it would be the same whether or not the Court of Appeals had disapproved the 10 months injunction.

Mr. S. Leonard Rottman: Had approved the 10 months injunction?

Justice Byron R. White: Let's assume that it had approved both injunctions, the temporary injunction and the --

Mr. S. Leonard Rottman: Yes sir.

Justice Byron R. White: -- 10 months injunction.

Mr. S. Leonard Rottman: It would basically be the same.

Justice Byron R. White: Your issue at here would be quite just the same, even though the Maryland court had made this kind of a ruling, is it?

Mr. S. Leonard Rottman: Yes sir, because it seems to us that the holding in Freidman was and the thinking in Freidman expressed by this Court is that it's the initial judicial review that's important.

It's not carrying all the way through to the appellate reviews as to before this very Court.

Justice Byron R. White: Well, maybe so as the procedural matter, but if you're just talking mootness why is it a little different slightly to this?

Mr. S. Leonard Rottman: Well, it's our position that if this case -- in this context is moot.

If you do want to consider this case however on the merits of it, and we'll go on to discus that if we will.

The issue, the principle issue before this Court on the merits of the case is the right of a state as we see it, is the right of a state to ever act to prevent certain classes of speech.

Justice Potter Stewart: Just before you get to that, one more question on mootness.

Was that -- was the issue of mootness argued before the Maryland Court of Appeals?

Mr. S. Leonard Rottman: I believe not.

Of course the 10-month injunction, what was called the interlocutory injunction at that point, was not moot.

Justice Potter Stewart: Was still in effect, up until the time that was still passing?

Mr. S. Leonard Rottman: That was still in effect, that's right.

The reversal was passed by the Maryland Court of Appeals, part of the expiration of that interlocutory injunction.

By the way, I may say in passing that I think the term interlocutory was simply used to distinguish it from a permanent injunction.

It was no question about being a final order but it was a final temporary in effect that it expired from a given period of time.

It was not an unlimited injunction.

Justice Abe Fortas: Well now, we don't have before this the 10-month injunction.

Mr. S. Leonard Rottman: I believe not Your Honor.

Justice Abe Fortas: And the 10-month injunction was set aside by the Maryland Court of Appeals.

Mr. S. Leonard Rottman: That's correct.

Justice Abe Fortas: On the grounds that it was extended for too long a period.

Mr. S. Leonard Rottman: That's right.

Justice Abe Fortas: But the Maryland Court of Appeals did hold that the ex parte order was properly issued, is that right?

Mr. S. Leonard Rottman: That's correct.

Justice Abe Fortas: And, in doing so, it seems to have addressed itself a really to the operation of the ex parte order with respect to the enjoining of the meeting that it was to be held the night following.

The night on which these utterances were made.

Mr. S. Leonard Rottman: Yes sir.

Justice Abe Fortas: And it said that what happened here according to Maryland Court of Appeals as I read it was that on the first night, the stage was set for what the police regarded as an inflammatory or violent situation on the following night.

Mr. S. Leonard Rottman: That's correct.

Justice Abe Fortas: And I don't see anything in here further long alliance that my Brother Stewart said, I see nothing in the Maryland Court of Appeals opinion with respect to the mootness points is that right?

Mr. S. Leonard Rottman: That's correct, they did not consider.

And we would suggest that the Maryland Court of Appeals affirm this decision on the issuance of the existence of a clear and present danger at the time the temporary 10-day injunction was issued.

Now if --

Justice Thurgood Marshall: Doesn't tomorrow in the same court issue, the same injunction against the same petitioner.

Mr. S. Leonard Rottman: You say if they would.

Justice Thurgood Marshall: Could they?

Mr. S. Leonard Rottman: It would depend I would submit on the background facts.

Was there a context of violence in the background at the time they attempted to speak?

Justice Thurgood Marshall: But suppose the tapes read almost exactly as they read in this case.

Mr. S. Leonard Rottman: I don't know that the tapes are particularly, they are important because they are the words that created -- helped create the clear and present danger but there was a background of violence which was also significant at the time of this particular incident.

These petitioners had spoken about three or four days prior in Baltimore City.

And their speeches in Baltimore City had created a riot that matters before this Court on petition for their conviction for inciting the riot, right now.

The State of Maryland is a reasonably small state.

All three of the Baltimore City television stations are being into Princess Anne.

The three Baltimore City newspapers, the existence of that riot had been given wide coverage throughout Maryland and particularly in Princess Anne.

Not particularly but in Princess Anne.

First thing petitioners said when they came down, “Did you heard of us in Baltimore?”

They drew a specific reference to their speeches in Baltimore.

It was set in a background of violence knowing that the tapes will not justify the issuance of the injunction.

Justice Thurgood Marshall: If you had the same information if they went back to Baltimore and said verbatim, what they said before and you had the same set of facts that you have in this case, could the same court issue, the same 10-day injunction against the same petitioners.

Mr. S. Leonard Rottman: It would depend I submit not on what they said but the result of what happened.

I think --

Justice Thurgood Marshall: We are turning would and could.

I said could.

Mr. S. Leonard Rottman: Could the --

Justice Thurgood Marshall: Same court issue the same temporary injunction for the same 10-day period against the same petition.

Justice Hugo L. Black: No, they have to -- the respondents have to go to the court as to contest a temporary restraining order.

Mr. S. Leonard Rottman: Yes sir.

Justice Hugo L. Black: Within two days?

Mr. S. Leonard Rottman: Yes sir.

Justice Hugo L. Black: And suppose within the remaining eight days, the court did not decide it.

Would it then become moot?

Mr. S. Leonard Rottman: Yes sir, we would believe it would be moot.

They would -- their only alternative for contesting that injunction would be to violate it and to bring it here.

Justice Hugo L. Black: But -- will be what?

Mr. S. Leonard Rottman: Would be to violate it and bring it here.

Justice Hugo L. Black: Is that -- but you said at that time, it was (Inaudible), that a --

Mr. S. Leonard Rottman: After the 10 days.

Justice Hugo L. Black: After the 10 days?

Mr. S. Leonard Rottman: That's correct.

Justice Hugo L. Black: Well, how then could a person ever get a decision?

From one year, one year, higher court's, on a temporary restraining order of that kind, would it be possible for them to get in the eight days so they are available?

Mr. S. Leonard Rottman: No sir.

Not a final decision would --

Justice Hugo L. Black: Then there is absolutely no --

Mr. S. Leonard Rottman: Well, I say no.

I say no.

There's no set procedure.

The Maryland Court of Appeals on a number of instances have -- has heard cases advanced on its docket and it is heard to my -- I think I know of cases that will come up between trial and final argument within five days.

Justice Hugo L. Black: Was a matter of fact, in the almost always a court could grant a 10-day restraining order and it will become moot before those any decision in the case.

Mr. S. Leonard Rottman: In most instances it could Your Honor.

Justice Hugo L. Black: I beg your pardon?

Mr. S. Leonard Rottman: In most instances it could.

Justice Hugo L. Black: So, there's no way that a man could protect his constitution rights except by violating the injunction?

Mr. S. Leonard Rottman: That's correct.

I would submit that that is correct.

Justice Hugo L. Black: And as you said a little while ago, you thought that was the way for him to do it.

Mr. S. Leonard Rottman: I think that if you must balance the right of the state to protect its streets and make it safe for its citizens, so that their constitutional rights maybe protected by preventing violence speech, and forcing people who wish to stretch the limits of their right to violating an injunction which they consider to be wrong.

I think the burden must lie on those who wish to stretch their right of free speech, because I think you must recognize Your Honors, that if you say that a state may not by injunctive action, prevent speech even speech which will create a clear and present danger.

Which will create an absolute riot as these petitioners did in Baltimore City.

That you are of necessity saying that you're going to deprive other citizens of their constitutional rights of being safe and secure in their person and property.

Because this Court has pronounced on many occasions, that there is speech which creates violence.

Speech sets off the motor equipment that is violence.

And when that violence is set loose, then other citizens are denied their rights.

Witness the incident that happened in Baltimore City.

When after these petitioners spoke before they were enjoined in Baltimore City, an innocent 12 year old boy was walking down the street in a Patterson Park with his dog, a Negro boy had nothing to do with the rallies, he was three blocks from the rallies, and the crowd from the rallies just swept up and beat him.

They put a rope around his neck, and if it hadn't have been for prompt police action, he would have been deprived his ultimate civil liberty.

Now, if you're not going to permit the state court's to enjoin this kind of speech which will set off that, then you've got to recognize that you're granting someone the right to exercise or abuse his constitutional privilege at the expense of denying that to other citizen, because the state is not --

Justice Abe Fortas: You're not addressing -- you're just addressing that to the merits I trust.

Mr. S. Leonard Rottman: I beg your pardon?

Justice Abe Fortas: You're making that speech in terms of the merits, aren't you?

Mr. S. Leonard Rottman: Yes sir, it goes to the merits of the issue.

Justice Abe Fortas: Because some terms of the procedural problem that's bothering some of us, I don't see that's gotten much to do with it.

Procedural problem that bothers me here is that the Maryland Court of Appeals reversed the 10-month order.

And then without talking about mootness, it addressed to itself to a 10-day order which was from practical effect to one-day order.

And the question is, has the Maryland Court of Appeals now made some decision, an effective decision, which has a First Amendment effect of which we can take cognizance within our constitutional limitations.

Mr. S. Leonard Rottman: Well, it has taken --

Justice Abe Fortas: That's the problem is I see it.

Mr. S. Leonard Rottman: It has taken cognizance of that fact that it can issue was the lower courts in Maryland can issue injunctions that they have done.

We would submit that that is correct and on the mootness issue.

Justice Abe Fortas: Well, do take it that that is an issue in this case?

I didn't know that anybody was doubting whether they can issue an injunction.

The question is, what if you reach some merits, the question is, these circumstances such that the injunction is a violate injunction.

Mr. S. Leonard Rottman: My understanding from listening to Mrs. Norton and in their brief that that's the very issue they raised is, "Should a state court ever have the right to issue an injunction?"

And we've address to ourselves for that someone extensively.

Justice Abe Fortas: Well, like in Freidman, an argument by analogy to Freidman as I understand it, which is at the procedure in Maryland for challenging the ex parte order is not adequate to protect the constitutional right.

But I didn't understand that they say that can issue an ex parte injunction at least, in appropriate circumstances.

Mr. S. Leonard Rottman: And by the way, we would point out that Freidman made it clear that what is required is some procedural requirement of a prompt judicial hearing.

And we submit that under the Maryland Rule BB72 there is that availability.

Your Honor's I have, I believe taken up most of my time and I want to leave a few minutes for Mr. Jones to tell you and address you on the question of the existence of the clear and present danger in this particular instance.

He was on the scene at the time and I think he can he address himself best to that.

Chief Justice Earl Warren: Very well.

Mr. Jones.

Argument of Alexander G. Jones

Mr. Alexander G. Jones: Mr. Chief Justice, may it please the Court.

The irony inherent in this case Your Honors are too numerous and too striking to bear further comment.

I would like to restrict my remarks to the clear and present danger as they existed in Princess Anne in August of 1966.

This was summarized by Judge Farnan who wrote the unanimous opinion of the Court of Appeals of Maryland in this case, at page 122 of the appendix.

Justice William O. Douglas: What clear and present danger test do you point to talk about?

Mr. Alexander G. Jones: The fact that the atmosphere in this community.

Justice William O. Douglas: You don't think that the Denis case change that?

Mr. Alexander G. Jones: No sir, not under these circumstances.

Justice William O. Douglas: Would you explain that as you go along?

Mr. Alexander G. Jones: Yes sir and I will try.

Judge Farnan in his opinion said, “The speeches delivered by the appellants must not be judged as they abstractly read or sound in the sequestered atmosphere of judicial chambers.

But with the realization that they were in the nature of a hoorang, delivered in the humidity of a tired August night from the courthouse steps of a county sit whose people were not strangers to racial violence.”

We urged that this rally held on August 6 must be viewed in the light of existing circumstance and that the appellants by their own words must be regarded as highly dangerous racial and religious bigots, deliberately operating in the atmosphere of ignorance and prejudice for the purpose of inciting hatred, strife and disorder.

And my little town of Princess Anne to its eternal shame first came notoriety as the seen at Maryland's last lynching in 1933, a fact which was not lost upon the appellants.

The town next to achieve national prominence has a local of serious racial disturbances in February of 1964.

The implication that this had since changed in all that becomes sweetness and light was news to may this morning, because I have to serve as Chairman of the biracial commission in this community during this time.

We submit that it was mere chance that brought the appellants to Princess Anne on August 6 '66 but rather that this small town of the many in Maryland that they may have visited afforded the best opportunity for the spread of their gospel and hatred.

They recently arrived from what they must have considered a triumphant appearance in Baltimore City.

An appearance, which resulted in an injunction against they return and convictions on several criminal counts.

We submit further that in these days of mass communications for the press, the radio, on the TV, there is no such thing as an isolated racial incident.

The right in Baltimore, Selma, Wats, Jackson or Rochester.

Fans had revised the flames of racial hatred throughout the land, a protected land of community such as Princess Anne and Somerset County, which have previously experience similar cases of civil disorder, endangering life and property.

And against this background of Princess Anne must be place the appearance of this hate mongers on August 6.

Their objectives it was set forth clearly enough by them in the cumulative effect of the statements was not lost upon the Court of Appeals of Maryland, nor was it lost upon their audience on the night of August 6.

For these people to come to Princess Anne in the atmosphere, which then existed, was fire in a crowded theatre.

It was a match in gunpowder plant.

There is direct test among in the record from Colonel Davidson and Captain Randall that only the presence of the police in large numbers on that night actually prevented a riot.

Testimony of one of the town commissioners, that the atmosphere was tense.

That it was on a thither.

That it could have gone off at any moment.

The court, the lower court judge do or did in fact hear this tape before he signed the original injunction.

It was played for him in his living room in his home.

And after he heard the tape, he signed the order granting the original injunction.

It was a mixed crowd in roughly the same proportion as a population of our county in town is mixed.

It was an ugly crowd.

The situation was ripe for violence and that is precisely why the petitioners were in Princess Anne at that time and on that date.

Of all the small towns in Maryland, they could have chosen, they picked this one as the one best suited to their objectives.

And we submit that there was a clear and present danger and at the presence of the police on the scene, followed immediately by the injunction issue by the Circuit Court was the only thing that prevented this town from going up in flames.

Justice Potter Stewart: This was August of 1966?

Mr. Alexander G. Jones: Yes sir.

There have been racial incident since that time and an answer to your question Mr. Justice Marshall, as town attorney for this community, if these people appear tomorrow, I would seek a similar injunction for exactly the same reasons.

Justice Byron R. White: And the rule established by Maryland Court of Appeals, you want to get it?

Mr. Alexander G. Jones: Yes sir, I would hope so.

Thank you Mr. Justice --

Justice Hugo L. Black: Was the proceeding based only in this statute at all?

Mr. Alexander G. Jones: No, sir.

There was no ordinance in the community and no state law involved.

Justice Hugo L. Black: What was the threat?

Mr. Alexander G. Jones: The threat was that any moment, that whole town and county could blow up sir as it had done in the past.

Justice Hugo L. Black: Well, I suppose there is substantially against blowing up a town.

Mr. Alexander G. Jones: Yes, sir, but it was been a bit late to --

Justice Hugo L. Black: I understand that.

I'm just saying though there was -- is that --

Mr. Alexander G. Jones: Against malicious distraction, yes sir.

Justice Hugo L. Black: Did they refer in the statute at all for the people violating any law and holding a meeting?

Mr. Alexander G. Jones: They had not violated any town ordinance as such Mr. Justice.

We have no requirements as to loud speakers or assemblers or anything of that nature.

Justice Hugo L. Black: What about the streets?

Mr. Alexander G. Jones: At this particular location, both of the streets happen to be stayed highways at this corner and the police, the Maryland State police were charged with the provision of those streets.

Presumably, that's one reason they was asked.

Justice Hugo L. Black: Is any state law against congregating on it or speaking on it or having meetings on it?

Mr. Alexander G. Jones: There are motor vehicle laws against the blocking of the streets, yes sir.

And this had happened in the past.

It happened in the 1964 demonstrations.

This was when the police were called to clear the streets.

Justice Hugo L. Black: But your injunction was not based on the blocking of the streets?

Mr. Alexander G. Jones: No sir.

The injunction was based upon the fact that to these mixed audience in this community at this time and in this place, a riot could well have developed, that it was imminent.

Justice Byron R. White: What the -- were there any ordinance, local ordinances or statutes directly --

Mr. Alexander G. Jones: No Your Honor.

Justice Byron R. White: -- on the basis of these observation.

This was the judicial actual remedy in a (Voice Overlap) --

Mr. Alexander G. Jones: Yes sir.

The town commissioners and the county commissioners approached the court, where they hastily draw on petition seeking an injunction.

Justice Byron R. White: But under no ordinance or --

Mr. Alexander G. Jones: No sir.

Simply they constitute a threat to the general welfare and health, and safety of the inhabitants of the town.

Justice William J. Brennan: The -- I gather the officers had no difficulty preventing violence?

Mr. Alexander G. Jones: Their part --

Justice William J. Brennan: The night of this meeting.

Mr. Alexander G. Jones: Their physical present sir, in considerable numbers according to Captain Randall, it was the only that presented the riot.

Justice William J. Brennan: And he reached to think that no violence the following night might not have the same result? That meeting in the following night --

Mr. Alexander G. Jones: The situation by that time Mr. Justice could have become so pulverized and so in the flamed that there were not enough state police to the State of Maryland to have controlled it, and that is Colonel Davidson's testimony as well.

The 10 months injunction as Mr. Justice Stewart indicated coincided with the school term of Maryland State College.

Justice Byron R. White: But it was narrower in the kind of meetings that it prevented.

Mr. Alexander G. Jones: Yes sir.

Justice Byron R. White: I suppose this party could have gone and had meetings under these 10 months injunction.

Mr. Alexander G. Jones: The second injunction as you indicate was narrower and that it restrained them from carrying on meetings of such a nature which would intend to incite racial strike.

Justice Byron R. White: What's your justification for the temporary restraining order where it is enjoined all meetings whether they would incite racial violence or not.

Mr. Alexander G. Jones: Because the -- simply because the situation was so inflammatory at the time that almost any assembly of persons immediately set off rumors, counter rumors, and drew others to the scene.

The 10 months injunction in fact was not requested by us, this was entered by the court on its own initiative.

The request for 10 months was never asked by us.

Justice William O. Douglas: I'm still puzzled why you don't discuss the Denis case which is much at issue of burden for the prosecution for the state.

You don't even mention in the brief, or --

Mr. Alexander G. Jones: The court possibly --

Justice William O. Douglas: Do you think it's just a communist doctrine rather than other than the one you have?

Mr. Alexander G. Jones: The reason I haven't discuss it Mr. Justice because I'm not familiar with it.

Justice William O. Douglas: Oh, I thought you promised me you were going to discuss it, I'm sorry.

Mr. Alexander G. Jones: No sir, we -- the brief here and in the Court of Appeals relied primarily on the original Shank case and the cases --

Justice John M. Harlan: The case on writ?

Mr. Alexander G. Jones: Shank sir.

And the cases since then, the Sheplenski and Campwell, Bo and Harris and others.

Justice William O. Douglas: But under Denis, you don't have to go as far as I read it, to shout fire on a crowded theatre.

Mr. Alexander G. Jones: That would be far enough in this community sir.

Justice William O. Douglas: I beg your pardon?

Mr. Alexander G. Jones: That would have been far enough in this community.